[IronDragon]

Court overturns Texas sodomy law
Justices say it violates Constitution’s equal protection clause

WASHINGTON, June 26 — In a major victory for gay rights advocates, the U.S. Supreme Court on Thursday struck down a Texas statute that bans gay couples — but not heterosexuals — from engaging in sodomy, ruling that the law was an unconstitutional violation of privacy.

THE 6-3 RULING reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.

The case is a major re-examination of the rights and acceptance of gay people in the United States. More broadly, it also tests a state’s ability to makes crimes of what goes on behind the closed bedroom doors of consenting adults.
Thursday’s ruling invalidated a Texas law against “deviate sexual intercourse with another individual of the same sex.”

The law “demeans the lives of homosexual persons,” Justice Anthony M. Kennedy wrote for the majority.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O’Connor agreed with the outcome of the case but not all of Kennedy’s rationale. She indicated that the law should have been overturned on grounds that it violates the Constitution’s equal protection clause.

Laws forbidding homosexual sex, once universal, now are rare.
SIMILAR LAWS ALSO INVALIDATED

Similar laws outlawing sodomy — defined as oral or anal intercourse — between gay or lesbian couples are on the books in Kansas, Oklahoma and Missouri and apparently were invalidated by Thursday’s ruling.
Nine other states have banned sodomy for both heterosexuals and homosexuals. It was not immediately clear whether the ruling also would strike them. Those on the books are rarely enforced but underpin other kinds of discrimination, lawyers for two Texas men had argued to the court. The men “are entitled to respect for their private lives,” Kennedy wrote. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” he said.

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented. Scalia, who wrote the dissenting opinion, took the unusual step of reading his dissent from the bench.
DISSENT CITES ‘CULTURE WAR’ “The court has largely signed on to the so-called homosexual agenda,” he said. “The court has taken sides in the culture war.”

Scalia added that he has “nothing against homosexuals.”
The two men at the heart of the case, John Geddes Lawrence and Tyron Garner, have retreated from public view. They were each fined $200 and spent a night in jail for the misdemeanor sex charge in 1998.

The case began when a neighbor with a grudge faked a distress call to police, telling them that a man was “going crazy” in Lawrence’s apartment. Police went to the apartment, pushed open the door and found the two men having anal sex.

As recently as 1960, every state had an anti-sodomy law. In 37 states, the statutes have been repealed by lawmakers or blocked by state courts. The Supreme Court was widely criticized 17 years ago when it upheld an antisodomy law similar to Texas’. The ruling became a touchstone for gay activists.

A long list of legal and medical groups joined gay rights and human rights supporters in backing the Texas men. Many friend-of-the-court briefs argued that times have changed since 1986, and that the court should catch up.
The court’s most recent previous ruling in this area came in 1986 when, by a 5-to-4 vote, it upheld a Georgia law outlawing sodomy.

In that case, Bowers v. Hardwick, the five-justice majority said “we are quite unwilling” to declare “a fundamental right to engage in homosexual sodomy.”

The majority said in the Bowers decision that for a right to be deemed fundamental it had to be “deeply rooted in this nation’s history and tradition.” And, they said, legalized sodomy was not part of the history and tradition of the country.

Of the current members of the court, Rehnquist and O’Connor joined the majority in the Bowers decision. Stevens was one of the four dissenters in Bowers.

Thursday’s ruling was based on arguments by the plaintiffs’ attorneys that because the men were arrested in a private residence while engaging in consensual sex, the raid amounted to an unconstitutional invasion of privacy.

It did not address a second legal point raised by the plaintiffs, that by mandating disparate treatment for two classes of citizens, the statute violates the 14th Amendment’s equal protection clause.

Defenders of the law said that any state has a right to set its own moral standards and that those who wrote the 14th Amendment never intended it to protect gays and lesbians. The 14th Amendment was written in 1867 to ensure that the ex-slaves did not become a permanent servile class, subjugated by state laws.

Texas defended its sodomy law as in keeping with the state’s interest in protecting marriage and child-rearing. Homosexual sodomy, the state argued in legal papers, “has nothing to do with marriage or conception or parenthood and it is not on a par with these sacred choices.” The state had urged the court to draw a constitutional line “at the threshold of the marital bedroom.”

Although Texas itself did not make the argument, some of the state’s supporters told the justices in friend-of-the-court filings that invalidating sodomy laws could take the court down the path of allowing same-sex marriage.